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[Mr Purple Poverty]

Hi I'm new here.

Not sure where to post this, because the issue relates to both licensing and copyright. I have a couple of questions about paintings for anyone who might be able to answer or has had experience of this kind of thing:

1) I have painted a portait of someone who has commissioned a painting from me. Do I need to obtain a release form in order to display a photograph of the painting (as part of my portfolio either online or elsewhere) which contains their image/ likeness? The subject of my painting doesn't wish to have the painting shown publicly either on my website or on social media sites because they think it is an extremely private affair and don't want it to be seen by anyone else (the work is not a nude or anything like that, but just a completely normal painting which would be perfectly acceptable to display).

I know that with photographs, you normally have to obtain a release form and get the subject to sign it if it is showing a picture of them, otherwise it might be seen as an invasion of privacy, unless used for private, research or educational purposes (ie anything non-commercial). However, is it the same for paintings as for photographs?

The whole essence of a painter's work is to display their work for others to see, particularly any commissioned work they may have undertaken, and precisely for commercial purposes to attract new business. Also, unlike a photo, ultimatelyl the purpose of the painting is not to show off the subject matter, but the painter's skill. Potential customers want to see examples of your latest work (especially commissioned work), particularly if it is a specific type of painting (eg portraits). It would be a serious limitation and hindrance if you can't even show your own work to others. It would be like gaining experience in a job/ gaining a qualification, but never being able to show it on your CV, which amounts to you not having the experience at all.

Should I have obtained a release form? It is too late now, because the subject has already indicated that they aren't willing to have it displayed, so it is highly unlikely they would want to sign a release form now. However, as the artist, am I still legally entitled to show the work that contains that person's image?

Also, does this mean that for all future work, whenever someone commissions a painting, I need to have them sign a release form at the start (before commencing any work) in order to display it as part of my portfolio? What if the painting is commissioned by A but the subject matter is of B, and the painting is a surprise for B? How am I supposed to then get B to sign that release form since A can't do it on their behalf, but A wouldn't want B to know about it either? This almost makes the whole idea of commissioned paintings impossible.

2) If the person who has commissioned the painting has already bought it, am I effectively assigning my copyright in the painting to that person by the fact that they have paid for it, or do those intellectual property rights still remain with me, the artist? If they still remain with the artist, shouldn't I have the right to display my own work? I would've thought that while I may be assigning the physical property rights through the sale of the painting, the intellectual property rights remain with me. Is it in any way implied through the sale that there is an assignment of rights, or does this need to be specifically stated in some kind of document (either that I am assigning it, or that I am not assigning it)?

Any help or suggestions appreciated.

[Zonath]

In general, if you're going to use anyone's likeness in a commercial manner, you should get a release prior to doing so, since many states prohibit the unauthorized commercial use or public display of someone's name or likeness, which could include use in a portfolio.  In general this right to protection of a 'likeness' can (and usually does) extend to non-photographic depictions, including paintings.

So bottom line is that if you want to use a painting of a person in your portfolio, on your website, or in other promotional materials, you should get a release.  In your situation where A is trying to surprise B, you would need to get a release from B after the fact.

Depending on the terms of your employment (i.e. whether you're an employee or an independent contractor), you may or may not be the owner of the copyright in your paintings.  Generally speaking, if you're an independent contractor (which seems most likely for a commissioned painter), you would still own the copyright, and if you're an employee, your employer would.  Additionally, although you might be selling a painting, the sale of that painting does not necessarily include a sale of its copyright (17 USC § 202).  And, assuming you retain the copyright, you would have the exclusive right to display or authorize the display of your painting in public under copyright law, but this would not necessarily override the right of a person to control the commercial use or display of his likeness, as discussed in the first paragraph.  So, you could very well have the right under copyright law to display or to authorize the display of your painting while not having the same rights to do so under state right of publicity laws.  Additionally, while certain licenses or other rights might be implied in the sale of a commissioned painting, you can only generally transfer the actual ownership of a copyright through a signed, written document (17 USC § 204).

Generally speaking, it might be useful to you to have some sort of agreement which includes a model's release of his or her publicity rights so that you can display your paintings as a part of your portfolio, as well as to clarify for the parties involved what their respective rights and relationships might be, which would include the ownership of the copyright, any licenses you might wish to give or rights you would wish to reserve, and so on.

[Mr Purple Poverty]

Thanks very much for the response. It was very helpful.

I should've stated that I am in the UK, so I don't know if US law on copyrights and privacy will be exactly the same. As far as I know with regard to assignment of copyright in the UK, that also has to be through a specific written document, but I would like to be able to find the exact statutes for that (or any case law to back it up). Same for privacy rights.

I would be an independent contractor in this case as it wasn't done under a contract of employment, but would've been a contract for services. From the little I've read of UK case law on the subject, commissioners of works have often mistakenly thought that they owned the copyright but were proved incorrect on the matter.

What happens for the following 2 situations?

1) Paintings containing people's likenesses who are complete strangers to you - painters often will make sketches and create a painting from random strangers they observe in a particular setting.

2) Commissioned paintings of people done a long time ago where you've completely lost touch with the person and they with you.

Also, on a slightly separate matter, do I need to obtain a property release form for buildings represented in a painting (eg someone's house, a famous landmark etc)? What happens if it is an entire skyline? Does this mean I need to obtain a property release from each building shown?

This seems as if it would make any kind of painting impractical and that the only type of painting I could do is fantasy/ non real life with non actual people, in order not to run into these problems. However, I'm not too interested in fantasy paintings.

Any help appreciated. Thanks.

[Zonath]

Yes, knowing the jurisdiction is somewhat helpful here.  Most of the posters here are based in the US, and typically have more limited knowledge of UK laws.  I will help how I can, but would counsel you to talk to a lawyer in your country.  Hopefully, someone will come along to fill in the gaps.

The exact statute for the proposition in the UK that an assignment of copyright needs to be in writing is contained in the Copyright, Designs, and Patents Act 1988 (1988 c. 48), Section 90:

(3)An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor.

As far as the buildings go, I believe the relevant section of the Copyright, Designs, and Patents Act 1988 would be Section 62:

62 Representation of certain artistic works on public display.

(1)This section applies to—

(a)buildings, and

(b)sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.

(2)The copyright in such a work is not infringed by—

(a)making a graphic work representing it,

(b)making a photograph or film of it, or

(c)making a broadcast of a visual image of it.

(3)Nor is the copyright infringed by the issue to the public of copies, or the communication to the public, of anything whose making was, by virtue of this section, not an infringement of the copyright.

As far as rights of publicity and rights of privacy go, I am entirely unfamiliar with how the concepts operate in the UK.